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In connection with the contemporary debates in political philosophy between liberal, republican and proceduralist–deliberative views of democratic politics, I deal with the question of how the different concepts in these debates can be related to the particular national history, memories and expectations of a polity. I shall concentrate on one German example of the relationship between constitutionalism and democracy, in order to show that political philosophy must pay more attention to the different shared practices and understandings within each liberal society.  相似文献   

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In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining.  相似文献   

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The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.  相似文献   

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关于土地征收征用制度的宪法比较   总被引:2,自引:0,他引:2  
李集合 《河北法学》2007,25(8):56-58
在公民的基本人权中,财产权居于核心地位.因此,对财产权的尊重构成了宪法的一个内在组成部分,对财产进行征收征用的规定当然也成为许多国家宪法的重要内容.通过对世界相关国家宪法关于财产征收征用的公共目的、正当程序、补偿及救济等主要内容的分析,结合我国特殊的土地权利市场,指出要完善我国土地征收征用制度,实现征地的合理性和公平性,首先必须在宪法层面完善土地征收征用条款,解决宪法框架内征地制度法律设计的内在冲突.  相似文献   

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独立而完整的法理学学科,主要应当由内容性要素、方法性要素和渊源性要素构成。所谓内容性要素,主要是法理学所阐发的理论学说;所谓方法性要素,主要是法理学所阐发和运用的方法论;所谓渊源性要素,主要是法理学赖以取材、孕育和形成的资源、进路和动因。研究法理学的构成,仅仅注重研究内容性要素和方法性要素是不够的,还应当充分注重研究渊源意义上的法理学构成要素。法理学的渊源性要素包含资源、进路和动因三种基本要素。其中,资源性要素是构成法理学整体的更重要和更基本的要素,主要包括理论学说、流派思想和人物作品三种。在这方面,中国现时的法理学著述还有很大的发展空间。  相似文献   

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2002年9月14日,由中国人民大学宪政与行政法治研究中心举办的“现代宪法解释:理论、规则与程序”在中国人民大学法学院隆重举行.会议就宪法解释基本范畴、宪法解释功能、宪法解释程序以及国外宪法解释理论研究的新动态等问题进行了专题研究……  相似文献   

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关于西方宪法史的研究,很大程度上就是对于西方宪法历史的阐释。它涉及如何理解宪法的涵义,如何理解历史上宪法事件或者具有宪法意义的事件,如何理解宪法性事件之间的因果关系等等。这些先决性命题,决定了西方宪法的历史图景及其线索。古代希腊以降的早期宪法思想与宪制实践,为西方宪法的成熟奠定了良好的基础。近东一带的政治法制实践,对于西方宪法思想的形成和发展产生过重要的影响,这些早期的宪政因子对于西方宪法制度和宪法思想提供了重要的知识渊源。  相似文献   

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一、引言无论过去苏联宪法对中国宪法有过怎样的影响,我们都不得不承认,如今我们对俄罗斯的情况十分陌生。我们对美、英、法、德等国的宪法远比对俄罗斯的情况更为熟悉,尽管从地理上讲,它们只是远邦,俄罗斯才是近邻。近几年,国内对  相似文献   

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我国公民基本权利之立宪发展   总被引:5,自引:0,他引:5  
一个国家对基本权利采用何种立宪形式往往同该国的历史积淀、立宪的人文背景、当时的权利意识存在极大的关联。纵观基本权利在我国历部宪法中的发展,可以发现宪法对公民权利趋于全面规定、宪法对个人权利空前重视、公民的人身人格权利上防御性的规定模式形成、公民的经济社会文化权利上国家义务被强调。为了宪法保障基本权利的价值得到实现,在公民基本权利的立法模式上,我们需要改变宪法不断确认权利的传统思维、强化国家义务、提供公民权利的救济原则和基本途径、明确公民权利受限制等等。如此才符合国家追求法治状态的价值目标、符合立宪规律。  相似文献   

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This study aimed to know the prevalence of sexual coercion toward women perpetrated by acquaintance Spanish college men, and some personal factors associated with the involvement in these behaviors to replicate the confluence model. An anonymous questionnaire was completed by 196 university students that included an adaptation of the Sexual Experiences Survey, and other scales to assess different attitudes, motives, and experiences associated with sexual aggression. About 15% of men admitted some involvement in sexual behaviors when the woman did not want it. The control and dominance needs, the personal disposition to impersonal sex, and empathy competency showed the strongest association with the involvement in coercive sexual behaviors. Empathy moderated the effects of control and domination needs and the impersonal sex in predicting sexual coercion. Overall, our data supports the confluence model.  相似文献   

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We have analysed patterns of alcohol and regular drug consumption by Spanish drivers. Six hundred and seventy five properly completed questionnaires were received from drivers attending three medical traffic centres in Valladolid (Spain) for medical examination prior to obtaining or renewing their driving licence in 1990. Among those surveyed, 24% were 'daily' drinkers and 56.7% were 'weekly' drinkers, the majority (55.5%) being 'light' drinkers (1-39 g/day of pure alcohol). Of those surveyed 28.9% took drugs. The most commonly consumed drugs were analgesics (6.5%), anti-allergic drugs (5.2%) and oral contraceptives (4.6%). Of those drivers taking drugs 28.2% were 'daily' drinkers and 53.8% were 'weekly' drinkers. The study indicates widespread consumption of alcohol and drugs by Spanish drivers.  相似文献   

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社会危害性在犯罪构成理论中的地位探析   总被引:1,自引:0,他引:1  
胡利敏  韩啸 《河北法学》2005,23(1):153-157
目前在刑法学界存在着社会危害性理论备受指责的现象,有的学者甚至认为应将社会危害性逐出我国的犯罪构成理论。这是不科学的。我们应该运用立体动态思维的方式正确分析犯罪概念、犯罪构成与罪刑法定主义的关系,不但要保留社会危害性的地位,更重要的是将其明确作为一个独立的犯罪成立的条件,这样才是对传统犯罪构成理论批判性的发展。  相似文献   

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Since 1978, all countries in Latin America have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power‐concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of the amendment procedure and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses the normative implications of the analysis.  相似文献   

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1812年拿破仑在俄国的颓势,以及1813年反法解放战争的节节胜利,给老德意志帝国注入了重新崛起的希望.改变帝国四分五裂的政治局面,实现德国统一成为整个德意志民族的共识.[1]  相似文献   

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In Germany, pharmaceutical trials and the testing of medical devices is regulated by statute. Any other kind of medical experimentation is handled according to the Declaration of Helsinki. Medical experimentation has to be reviewed by an ethics committee before the start and there has to be an elaborate research protocol, which provides for the protection of the experimental subject. In case of an accident, there is compulsory accident insurance as far as pharmaceutical trials and the testing of medical devices are concerned. The third party accident insurance just covers material loss, there is no provision paying and suffering. The sum paid by the insurance company is set off against damages for negligence. There is no strict liability for medical experimentation, but the German courts are expected to set very high standards for medical care in experimentation. The data protection and medical confidentiality have been lessened because of the European law that requires the experimental subject to give his consent to the inspection of the data or the file and if he takes part in the experimentation, that his data and some of his cells might be with the pharmaceutical company forever. In general, the German law seems to be adequate to the protection of experimental subjects.  相似文献   

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This work aims to study the efficacy and effectiveness of Spanish police forces concerning major crimes—differentiating those against property, public safety, the person, and sexual liberty and indemnity—in the 2001–2006 period, using Data Envelopment Analysis (DEA). To study their efficacy we will consider both operational efficacy, defined as the ratio between solved crimes and tasks, and goals efficacy, intended to show the effect of operational efficacy on the level of crime in the subsequent year, which is measured by the annual variation in major crimes. The analysis of the effectiveness of Spanish police forces attempts to measure the impact of goals efficacy on how people perceive local security. To determine their effectiveness we will also consider the tourism variation index, population and economic activity and their influence on the variation in the number of crimes. The results show that the average operational effectiveness of police during the period analysed reaches 96%, with optimal behaviour in 19% of the stations analysed. Additionally, our findings show that the average goals effectiveness is 89% and the average effectiveness turns out to be 89%.  相似文献   

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